By Alexander Tsesis

Oliver Wendell Holmes Jr.’s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice’s thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court’s free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In these areas, the marketplace of thoughtful expression will give rise to searching wisdom, understanding, culture, taste, achievement, scientific truth, political action, and creativity. On the other hand, market political leverage can drown out minority voices. According to a Holmesian relativist understanding, populist versions of truth can and should dominate law and its formation. To his mind, the judiciary lacks any power to check “proletarian dictatorship” from forming in the country. Left unqualified, his political perspective on truth allows for abuses of representative governance. In the second decade of the twenty-first century, democratic institutions are being exploited by populist autocrats like Hungary’s Viktor Orbán or Turkey’s Recep Tayyip Erdoğan. Populism in the United States, on the right and on the left of the political spectrum, is alarmingly flirting with xenophobia, racism, and anti-Semitism. That political reality should give us some pause about expecting libertarianism to yield a just truth.

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Recommended Citation
Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism, 72 SMU L. Rev. 495 (2019).